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Vol. 8, Issue 6
June 1, 2017

MISCLASSIFICATION OF  EMPLOYEES AS INDEPENDENT CONTRACTORS CAN COST BIG $$$

The misclassification of employees as independent contractors can result in fines, penalties, additional withholding and payroll taxes and big money lawsuits.  The Department of Labor routinely conducts audits of employers, including new car dealerships, to determine if proper contributions were paid on behalf of certain employees classified as independent contractors.  Commonly misclassified employees at the dealership include F&I Managers and lot personnel. 
 
By law, workers are either independent contractors or employees, with no in between.  The following chart can help you to determine whether a worker is an Independent Contractor or an Employee. 
 
Employee
Independent Contractor
1. Instructions
 
Employees comply with instructions about when, where, and how work is to be performed.
Contractors set their own hours and do the job in their own way.
2. Training
 
Employees are trained to perform services in a particular way. They are required to take courses and attend meetings.
Contractors use their own methods and receive no training from the purchaser of their services.
3. Integration
 
Services of an employee are merged into the business. Success and continuation of the business depends upon these services. The employer coordinates work with that of others.
The success and continuation of the business aren't dependent on services provided by a contractor.
4. Services Rendered Personally
 
Services must be rendered personally. An employee does not engage other people to do the work.
Contractors are able to assign their own workers to do the job.
5. Hiring, Supervising, Paying
 
An employee hires, supervises and pays workers at the direction of the employer (i.e.: acts as foreman or representative of the employer).
Contractors hire, supervise and pay the other workers as the result of a contract. A contractor agrees to provide materials and labor and is responsible for the results.
6. Continuing Relationship
 
An employee continues to work for the same person year after year.
Contractors are hired to do one job. There is no continuous relationship.
7. Set Hours of Work
 
An employee's hours and days are set by the employer.
Contractors are masters of their own time.
8. Full Time Required
 
An employee normally works full time for an employer.
Contractors are free to work when and for whom they choose.
9. Doing Work on Employer's Premises
 
Employees work on the premises of an employer; or on a route, or at a site, designated by the employer.
Contractors work off an employer's premises and use their own offices, desks, and telephones.
10. Order or Sequence Set
 
An employee performs services in the order or sequence set by the employer. Salespersons report to the office at specified times, follow-up on leads, and perform certain tasks at certain times. 
Services are performed at a contractors own pace. Salespersons work their own schedules and usually have their own offices.
11. Oral or Written Reports
 
Employees are required to submit regular oral or written reports to the employer.
Contractors submit no reports.
12. Payment by Hour, Week, Month
 
Employees are paid by the employer in regular amounts at stated intervals.
A contractor is paid by the job on a straight commission.
13. Payment of Business and/or Travel Expenses
 
The employer pays employees' business and/or travel expenses.
Contractors take care of their own expenses and are accountable only to themselves for expenses.
14. Furnishing of Tools, Materials
 
An employer furnishes tools, materials, etc.
Contractors furnish their own tools, etc.
15. Significant Investment
 
An employee has no significant investment in the facilities used to perform services.
A contractor has a real, essential and significant investment.
16. Realization of Profit or Loss
 
An employee cannot realize a profit or loss by making good or bad decisions.
Contractors can realize a profit or suffer a loss as a result of their services or decisions.
17. Working for More than One Firm at a Time
 
An employee usually works for one employer at a time.
An independent contractor works for a number of persons or firms at the same time.
18. Making Services Available to the General Public
 
An employee does not make services available to the general public.
Contractors have their own offices and assistants. The hold business licenses, are listed in business directories, maintain business telephones, and otherwise generally make their services available to the public.
19. Right to Fire
 
An employee can be discharged at any time.
Contractors cannot be fired so long as product results meet contract specifications.
20. Right to Quit
 
Employees can quit their jobs at any time without incurring liability.
Contractors agree to complete a specific job and are responsible for satisfactory completion; or they are legally obligated to make good for any failure.
 
Businesses must weigh all these factors when determining whether a worker is an employee or independent contractor. Some factors may indicate that the worker is an employee, while other factors indicate that the worker is an independent contractor. There is no "magic" or set number of factors that "makes" the worker an employee or an independent contractor, and no one factor stands alone in making this determination. Also, factors which are relevant in one situation may not be relevant in another.
 
The keys are to look at the entire relationship, consider the degree or extent of the right to direct and control, and finally, to document each of the factors used in coming up with the determination.
 
The misclassification of employees as independent contractors has been prominent in employment litigation in 2017.  Since the beginning of the year Lowe's Home Improvement negotiated a $2.85 million settlement with installers whom it allegedly misclassified as Independent Contractors, Lufthansa agreed to pay $1.1 million in settlement for a group of aircraft workers while Time Warner and Uber were also sued for alleged misclassifications of Independent Contractors. Don't become part of the next headline; verify the proper classification of your employees today.   
 
For more information contact Stevan LaBonte at 516-280-8580 or by e-mail at  slabonte@labontelawgroup.com.

TOP OSHA VIOLATIONS




Every year the Department of Labor's Occupational Safety and Health Administration (OSHA) releases a list of the 10 most frequently cited safety and health violations.  The following is the list of the most frequently cited workplace safety violations.   


2016 OSHA Top 10:
  1. Fall protection;
  2. Hazard communication (preparing and implementing a written hazard communication program, and ensuring that all containers are labeled, employees are provided access to MSDSs, and an effective training program is conducted for all potentially exposed employees)
  3. Scaffolds;
  4. Respiratory protection;
  5. Lockout/tagout (ensuring that machines are powered off and can't be turned on while someone is working on them);
  6. Powered industrial trucks;
  7. Ladders; 
  8. Machine guarding;
  9. Electrical wiring; and
  10. Electrical, general requirements
In the past year the LaBonte Law Group has received several calls from clients who received visits from OSHA, the NYS Department of Environmental Protection or local health and/or environmental protection agencies.  Most of the visits were the results of anonymous complaints filed by current or former employees.  Once on site these agencies can run up a laundry list of potential violations and require you to take immediate action.
 
It is vital for dealers to conduct regular inspections of their facilities and their workplace processes and procedures to ensure compliance with workplace safety rules and regulations.  Failure to comply with these rules can result in costly fines but more importantly can result in an injury (or even death) to one or more employees.

For more information on OSHA rules contact the LaBonte Law Group at 516-280-8580 or at slabonte@labontelawgroup.com.   
Should you have any questions or need advice on anything related to dealership operations please do not hesitate to give me a call at 516-280-8580 or send me an e-mail to slabonte@labontelawgroup.com.  Your questions will be answered promptly.
Sincerely,

Stevan H. LaBonte, Esq.
LaBonte Law Group, PLLC
1461 Franklin Avenue, Suite LL-S
Garden City, NY 11530

516.280.8580 (Phone) 
631.794.2434 (Fax)